Common use of Title to Assets; Equipment; Real Property Clause in Contracts

Title to Assets; Equipment; Real Property. (i) Each of the Company and Phase Three owns, and has good, valid and marketable title to the assets purported to be owned by them and which are material to the Company or Phase Three or to the conduct of their business in a manner substantially similar to business operations or each as of the date of this Agreement. Except as set forth in 3.1(h) of the Company Disclosure Schedule, such assets are owned by the Company or Phase Three free and clear of any Encumbrances, except for (x) any lien for current taxes not yet due and payable and (y) liens that have arisen in the ordinary course of business and that do not materially detract from the value of the assets subject thereto or materially impair the operations of the Company or Phase Three. The material items of equipment and other tangible assets owned by or leased to the Company are adequate for the uses to which they are being put and are in good condition and repair (ordinary wear and tear excepted). The assets, properties and interests in properties of the Company to be owned, leased or licensed by the Surviving Corporation at the Effective Time shall include all assets, properties and interests in properties (real, personal and mixed, tangible and intangible) and all rights, leases, licenses and other agreements necessary to enable the Surviving Corporation to carry on the business of the Company as presently conducted by the Company. The assets, properties and interests in properties of Phase Three to be owned, leased or licensed by Phase Three at the Effective Time shall include all assets, properties and interests in properties (real, personal and mixed, tangible and intangible) and all rights, leases, licenses and other agreements necessary to enable Phase Three to carry on the business of Phase Three as presently conducted. The SWI Distribution will not result in the distribution of any material assets of either the Company or Phase Three necessary for each to conduct its business after the Effective Time as presently conducted. (ii) Neither the Company nor Phase Three owns any real property or any material interest in real property, except for the leaseholds created under the real property leases (the "Leases") included in Part 3.1(h) of the Company Disclosure Schedule (the "Leased Real Property"). The Company has provided true and complete copies of each Lease to Parent Each of the Leases are in full force and effect and constitute valid and binding obligations of the Company or Phase Three, as applicable. The Company has made available to Parent true and complete copies of all Leases. Except as set forth in Section 3.1(h) of the Company Disclosure Schedule, all improvements included in the Leased Real Property are in good operating condition and repair in all material respects (ordinary wear and tear excepted) and there does not exist any condition which interferes with the economic value or use of such property and improvements. As used herein, the term "Encumbrances" shall mean and include any lien, pledge, hypothecation, charge, mortgage, security interest, easement or other encumbrance or cloud on title.

Title to Assets; Equipment; Real Property. (i) Each of the Company and Phase Three Carnegie owns, and has good, valid and marketable title to the assets purported to be owned by them and which are material to the Company or Phase Three Carnegie or to the conduct of their business the Business in a manner substantially similar to business operations or of each as of the date of this AgreementCompany Balance Sheet Date. Except as set forth in 3.1(hSection 3.1(i) of the Company Disclosure Schedule, such assets are owned by the Company or Phase Three Carnegie free and clear of any Encumbrances, except for (x) any lien for current taxes not yet due and payable and (y) liens that have arisen in the ordinary course of business and that do not materially detract from the value of the assets subject thereto or materially impair the operations of the Company or Phase ThreeCarnegie. The material items of equipment and other tangible assets owned by or leased to the Company are adequate for the uses to which they are being put and are in good condition and repair (ordinary wear and tear excepted). The assets, properties and interests in properties of the Company to be owned, leased or licensed by the Surviving Corporation at the Effective Time shall include all assets, properties and interests in properties (real, personal and mixed, tangible and intangible) and all rights, leases, licenses and other agreements necessary to enable the Surviving Corporation to carry on the business of the Company Business as presently conducted by the Companyconducted. The assets, properties and interests in properties of Phase Three Carnegie to be owned, leased or licensed by Phase Three Carnegie at the Effective Time shall include all assets, properties and interests in properties (real, personal and mixed, tangible and intangible) and all rights, leases, licenses and other agreements necessary to enable Phase Three Carnegie to carry on the business of Phase Three Business as presently conducted. The SWI Distribution Asset Sale will not result in the distribution of any material assets of either the Company or Phase Three Carnegie necessary for each to conduct its business the Business after the Effective Time as presently conducted. (ii) Neither the Company nor Phase Three Carnegie owns any real property or any material interest in real property, except for the leaseholds created under the real property leases (the "Leases") included in Part 3.1(hSection 3.1(i) of the Company Disclosure Schedule (the "Leased Real Property"). The Company has provided true and complete copies of each Lease to Parent Alloy. Each of the Leases are is in full force and effect and constitute constitutes the valid and binding obligations obligation of the Company or Phase ThreeCarnegie, as applicable. The Company has made available to Parent Alloy true and complete copies of all Leases. Except as set forth in Section 3.1(h3.1(i) of the Company Disclosure Schedule, all improvements included in the Leased Real Property are in good operating condition and repair in all material respects (ordinary wear and tear excepted) and there does not exist any condition which interferes with the economic value or use of such property and improvements. As used herein, the term "Encumbrances" shall mean and include any lien, pledge, hypothecation, charge, mortgage, security interest, easement or other encumbrance or cloud on title.